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It has been over forty years since a Solicitor General has moved to the High Court. Now that Elena Kagan has followed in Solicitor General Thurgood Marshall’s footsteps, she has to navigate a strict judicial disqualification statute that did not exist in 1967, when he became Supreme Court Justice.

Although Kagan initially said that she would only disqualify herself in if she was on the brief, she responded differently when confronted with a specific statute that requires Kagan to disqualify herself in every case where, as a government employee, she participated as a lawyer or as an adviser or expressed an opinion, whether written or oral, concerning the particular case in controversy. Thus far, she has disqualified herself in about 50% of the cases her first term of court.

That percentage may not drop substantially for the next year or so. For example, she may have to disqualify herself in cases testing the constitutionality of the new medical care overhaul, popularly called Obamacare, if she earlier expressed an opinion about cases now in litigation.

As a consequence, Senator Leahy has proposed legislation that would authorize retired Supreme Court justices to return to the Court to decide cases when one or more of the Court's members are recused. This bill, however, raises significant constitutional problems. In 1937, Chief Justice

Hughes, in response to FDR’s Court-Packing proposal, advised that it would not only be unwise for the Court to sit in panels, but it would appear to violate the Constitutional requirement that there shall be “one” Supreme Court.